Due Diligence and Discoverability of Injuries
It is important for lawyers and their clients to actively seek medical opinions with respect to whether the client has suffered a permanent impairment.
In tort cases, such as in personal injury, the limitation period begins to run as of the date that the damage or injury was discovered or ought to have been discovered had the plaintiff exercised reasonable diligence.
In Ontario, a claim is discovered on the earlier of (a) the day on which the person with the claim first knew (i) that the injury, loss or damage had occurred; (ii) that the injury, loss or damage was caused by or contributed to by an act or omission; (iii) that the act or omission was that of the person against whom the claim is made; and (iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it, and (b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to previously.
In Yasmin v. Alexander, 2016 ONCA 165, the issue was when the Appellant ought to have reasonably known that the impairments from her injuries, sustained in a car accident, were serious and permanent, and thus were discoverable under s. 5 of the Limitations Act, 2002.
The Appellant argued that she had acted with reasonable diligence by attending for treatment and assessments by the health care providers and doctors provided by her accident benefits insurer, by undergoing x-rays on three occasions, and by consulting with her family doctor. She had been assessed by nine different doctors and health practitioners, each of whom delivered a report, and none of whom had indicated that she had a permanent injury.
The Court of Appeal held that since neither the Appellant nor her lawyer had sought an opinion with respect to the issue of permanent impairment when she was assessed, she could not rely on the fact that the reports did not indicate a permanent injury to argue due diligence. The appellant's lawyer had not taken any steps to investigate whether her injuries met the threshold for permanent impairment. The Court agreed with the motion judge's finding that it was unreasonable for the appellant to have failed to make the inquiries regarding the nature of her injuries.
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